Supreme Court Hears Oral Arguments In Microsoft Email Case

from the in-which-the-DOJ-claims-the-DOJ-can-get-communications-from-anywhere-in-the-worl dept

The Supreme Court held oral arguments in the Microsoft case on Tuesday. The case centers on jurisdictional limits for warrants issued under the Stored Communications Act. The government believes there should be no limits, not if it serves the warrant domestically. Microsoft, the recipient, informed the US the communications it sought resided in an Irish server, beyond the reach of the SCA.

The Second Circuit, in consecutive decisions, found in favor of Microsoft. If the government wants access to communications stored in overseas servers, it needs to work with that country's government to obtain them. After all, the US government certainly doesn't want other countries deciding their laws take precedence over our own and bypassing assistance treaties to obtain communications stored here.

Or maybe it does. Or maybe the DOJ just doesn't care about collateral damage. Either way, its appeal is being heard by the Supreme Court, which has a chance to alter an old law (1986's SCA) in a bad way. The government got off on the wrong foot by claiming its demand for communications wasn't a search. From the transcript [PDF]:

[Michael] DREEBEN [DOJ Deputy Solicitor General]: Mr. Chief Justice, and may it please the Court: Section 2703 of the Stored Communications Act focuses on classically domestic conduct. It requires disclosure in a court order by the United States of information related to United States crime and here by a United States service provider.

JUSTICE SOTOMAYOR: It actually requires a search. It's -- the disclosure here is really a substitute for the government's searching. The Act permits the government to have a warrant and go in and search for these materials or, in the alternative, to ask the source to do its own search and then turn the materials over. So why -- you describe it as if it's only a disclosure, but it's really a search.

Dreeben argued that the demand for communications isn't a search because the search is performed by the service provider. While it's true the government isn't going into Microsoft data centers and digging through servers, the fact is the search would not be taking place if the government hadn't requested one to be performed. It may be outsourcing the actual search, but Microsoft has zero interest in these communications until the government steps in and says it wants them. Dreeben is splitting hairs, but they're hairs that have been split for more than 30 years, when the SCA granted the government the power to obtain certain records and communications from service providers.

The government's lawyer also asserted that the SCA explicitly provides for the acquisition of overseas data. But the arguments made show that isn't the case. It governs production of data by US service providers. It says nothing about demanding they produce info stored in other countries. The DOJ wants the law to be read as allowing for the acquisition of overseas data, so long as the warrant is served in this country.

Justice Sotomayor challenged this assertion, pointing out a couple of relevant things. First, the law is more than 30 years old. Second, the point of territorial limits (one of them) is to avoid upsetting the international apple cart.

This is a 1986 statute. The reality in 1986, if you look at the statute and its reference to stored records, to stored communications, was -- it's a past technology, old concept. But I think it's fair to say that back then they were thinking that where these materials were stored had a geographic existence in the United States, not abroad or nowhere else, and that they were protecting the communications that were stored in particular locations.

Things have changed. But what you're asking us to do is to imagine what Congress would have done or intended in a totally different situation today. And the problem that Justice Ginsburg alludes to is the fact that, by doing so, we are trenching on the very thing that our extraterritoriality doesn't want to do, what our jurisprudence doesn't want to do, which is to create international problems.

She went on to note there's legislation in the works that would lift territorial limits in cases like these, but limit (or attempt to) international fallout. Why not leave things the way they are and let Congress sort it out? The DOJ's response is basically that Microsoft manufactured a problem with its refusal to comply with the SCA order, and now the US is out of step with data acquisition treaties made by (and with) other countries around the world.

The justices aren't all that thrilled with Microsoft's arguments either. Justice Alito pointed out Microsoft complied with SCA warrants prior to this challenge and that it always has the option to voluntarily disclose communications to the government. (The response from Microsoft's lawyer -- E. Joshua Rosenkranz -- is that doing this would violate its relationship with its customers, who assume the company won't just hand over info to law enforcement without being ordered to.)

There was also some discussion about the location of the servers and why this shouldn't matter when it comes to responding to a court order. Rosenkranz pointed out that the DOJ still couldn't access overseas emails even if it shoved the Microsoft employee aside and performed the search themselves. The instructions sent to retrieve the emails "land" in Ireland and the retrieval process begins, no matter who initiates the search. Trying to skirt territorial limits by using a domestic proxy doesn't make it any less of a violation of domestic statutes or, in the case of Ireland, Ireland's privacy laws.

It comes down to location, as Microsoft sums up. The fact that the papers sought are ones and zeroes should make no difference.

[T]he government asks this Court to grant it an extraordinary power, and it's a power that Congress did not think it was granting law enforcement in 1986, and certainly did not intend to grant to every police officer and every sheriff's deputy anywhere in the country. Back then, if the police needed to gather evidence from all over the world, they would have to engage with law enforcement everywhere else in those countries.

And they have the tools to do that, even though the DOJ portrays those as pretty much unworkable. Rosenkranz's take is a little more optimistic.

JUSTICE ALITO: All right. Well, all right. The service provider has chosen to store it overseas. There's no way to get the information, other than through these -- these very time-consuming MLAT procedures?

MR. ROSENKRANZ: Well, Your Honor, the way to get the information is through MLATs, and the only evidence in this record about MLATs is that MLATs do work. If it's urgent for the government, the other governments respond urgently.

It's hard to say where the court's sympathies lie. No one seems too impressed with Microsoft's assertions it doesn't have to respond to domestic warrants simply because someone chose to store their communications overseas. But, by the same token, no one's sold on the DOJ's assertions the SCA provides for extraterritorial searches. And, given its multiple appearances in the arguments, the court may simply decide to maintain the status quo and let Congress sort it out. This will force the DOJ to play by territorial guidelines until new laws are in place. It won't be happy, but it managed to get the Rule 41 rewrite it wanted which allows it to execute warrants anywhere in the US, no matter where they were issued.

The SCA needs a rewrite, but a rewritten law that considers the DOJ to be the prominent stakeholder isn't going to fix anything. Criminals have off-shored evidence for years now. A ruling for the status quo won't substantially increase the number of scofflaws stashing communications on foreign servers, but a ruling against it would definitely damage international relationships, if not numerous internet-based communication platforms. The DOJ would like the Supreme Court to rewrite laws on the fly, which really isn't its job. If the court decides it's going to stay in its lane with this case, chances are Microsoft comes away with a win, even if it ends up being a momentary victory.

On the positive side...

Institutional interests of the DoJ

The “government” argument in this case is not only stunningly dishonest, but also narrowly parochial. It is in the long-term best interests of the United States of America —as a nation— to honor the territorial sovereignty of our friends and allies around the world.

The Department of Justice, in this case, represents only their own departmental interest in accomodating the magpie-like greed of prosecutors for their own power.

Diplomatically —among our friends— the State Department ought to disavow the Solicitor General's argument in this case.

Re: Justice Sotomayor is wrong

Re: Re: Justice Sotomayor is wrong

So were corporations which stored their papers, microfiche, and other media, outside the US. As well as their money.

If they really go this route, we ought also to be able to collect taxes on money stashed anywhere, including those super private tax havens, and regardless as to whether a former US corporation reincorporated elsewhere.

I f we are going to keep reaching into other countries, let's have at it all the way, not selectively.

Re: Re: Re: Justice Sotomayor is wrong

So were corporations which stored their papers, microfiche, and other media, outside the US.

Where's the case law on that? If there's none, the process must not have been very common (i.e., materials about US persons would have been almost always stored in the US).

If they really go this route, we ought also to be able to collect taxes on money stashed anywhere, including those super private tax havens, and regardless as to whether a former US corporation reincorporated elsewhere.

The US does claim that power (Eritrea is the only other country that does), and has chosen specifically to implement certain exemptions. The worldwide income of any US person or corporation is taxable to the extent congress decides.

This can and will be abused by the government, just like anything else they can get their hands on.

This can and will be abused by people deliberately trying to keep things away from the government. People in the US, storing things on servers in other countries they've never been to, just to keep it away from the US government.

Re:

. . . Ireland and the United States are already parties to a Treaty (the MLAT) addressing the subject of this appeal. Ireland therefore considers that the procedures provided for in that Treaty represent the appropriate means to address requests such as those which are the object of the warrant in this case. Accordingly, Ireland remains ready to consider, as expeditiously as possible, a request under that Treaty, if and when it be made.

Re: Re:

Yeah. Pretty sure most of those MLAT procedures that "don't work" never happened, or were simply so egregious that a foreign power (foreign foreigners who are not even blessed by our Exceptional Constitution, the poor savages) simply had to decline.

'We got MICROSOFT to cave, what chance do you think YOU have?'

About the same thing they were thinking in the Apple phone case a while back I suspect, namely that if they can get Microsoft to cave here, or get a favorable court decision, they can use that elsewhere.

Re: Re: 'We got MICROSOFT to cave, what chance do you think YOU have?'

Yeah, I dearly hope the court keeps in mind that the DOJ is attempting to merely use them to get a favorable precedent they can use elsewhere, rather than win this particular case.

If they actually cared about the data in question they could request it from a government that has made clear that they are willing to assist. That they have not done so makes it clear that that's not their goal here, and hopefully the court realizes this.

Re: Re: Re: 'We got MICROSOFT to cave, what chance do you think YOU have?'

…and hopefully the court realizes this.

Whether or not the Supreme Court is wide-awake enough to comprehend the contrivance, the President ought to instruct the Attorney General to just accept the help from Ireland. That's what would happen if our republic had a well-functioning executive.

And with or without presidential instruction, the AG ought to fire the SG, too. It's also in the long-term best interests of the United States for the Solicitor General to be the absolute straightest of straight shooters with the Supreme Court.

Communications and Search

The government got off on the wrong foot by claiming its demand for communications wasn't a search

Wow.

Doesn't the 4th amendment protect your papers and effects from search without a warrant? What are papers? Not the things you roll up to smoke. But the things used for . . . duh . . . Communications! What else are papers used for? (bird cage lining)

Isn't the primary use of paper, since it was invented by smashing plant material by hand, and rolled up on scrolls, wasn't the purpose: Communications?

So how can a demand for communications, NOT be a demand for 21st century Papers? And thus requiring a warrant? Even PDFs are considered papers in the 21st century.

Most communications today are on "Web Pages" for goodness sake. So aren't your papers, eg, communications, protected by the 4th amendment?

As a patriotic American, I'm proud to stand up and support the freedoms we once had.

Re: Communications and Search

God given inalienable rights

God doesn't give rights. The power of force tends to be what gives rights. The state can promise to use its power of force to enforce the rights of the people, which is how we typically preserve our rights in modern societies.

Except when we don't.

The US provided rights to its citizens, but not its women or slaves. Since then we've decided both of those were a bad move on our part, and there have been legal precedents that suggest everyone should have their rights defended by the US, even constitutional rights.

But then we sometimes think we should treat our workers well and help out poor people when they can't get work or can't work due to injury or circumstance. But these notions also fall out of favor.

The state doesn't much like protections against unreasonable search and seizure, and likes to worm around them and provide exceptions when an illegal search yields criminal activity.

God seems to be silent on all these matters as She is regarding the suffering of caterpillars stricken with wasp larvae.

Re: The power of force tends to be what gives rights.

No, the power of force tends to take away rights. That’s why we need the rule of law to counter that. And a free and open society to try to offer some checks and balances on those entrusted with implementing that rule of law. Because “sunlight is the best disinfectant”, as they say.

Laws require enforcement.

laws are useless if they are not enforced, as in, with force.

When Gregor Clegaine's war band rapes your daughter and burns down your village, no amount of law stops him from doing so unless the state can round up enough of a force to hunt him down and stop them (which, in the story, they couldn't).

Without the state having a monopoly on force, whoever outguns you (whether firearms or sheer might) can make you their bitch, and it is then only by the mercy those stronger than you that you live and breathe.

Law is the expression of rights in letter form, but it only works if law is enforced. Hence the way US law enforcement can rob people despite an alleged protection versus unreasonable search and seizure.

Re: Laws require enforcement.

Damn, that's a quote-worthy statement! Bows

Next time an anti-government type whinges about monopoly on force, I'm wheeling this out:

Without the state having a monopoly on force, whoever outguns you (whether firearms or sheer might) can make you their bitch, and it is then only by the mercy those stronger than you that you live and breathe.

Re: Re: Laws require enforcement.

Except that it has nothing to do with "monopoly" on force. Whether or not the government have this monopoly, they can use force in response to illegal acts. A minor difference is that a government with a monopoly could shut down a group acquiring weapons etc. before someone's hurt, if they notice in time; but that doesn't apply in the USA.

Monopoly on force

Except that the monopoly on force implies having enough enough force to overwhelm those that would break the law. The proper term is Gewaltmonopol des Staates. and granted, it doesn't have to be an absolute monopoly, but certainly supremacy. Enough that when the police come to a suspect's door and confront him about his wrongdoings, he understands that trying to fight them or flee are both likely to end badly.

We've seen plenty of cases in which private entities have been able to muster enough force to resist law enforcement. The Italian-American Mafia, Chinese Tongs and South American drug lords come to mind. And in those cases, laws get broken, rights are not assured by the state and are violated with impunity. It doesn't help when sometimes law enforcement breaks down when trying to address such entities (e.g. police officers are susceptable to bribes or collusion, not just opposing force)

In the US the police are far from perfect. Most crimes they do not detect, and those they do they often cannot gather enough evidence to bring a suspect to court. On the other hand, sometimes they're over eager to grab a scapegoat, and once processed, that person is very easy to indict and convict (or scare into a bargain), and they get points for making up crimes and filling our prisons with warm bodies, and no points for vindicating the innocence of someone caught in the wrong place.

So the monopoly on force is really a hypothetical ideal we strive for, and law enforcement agencies only function so well towards achieving that ideal. (And then when we do create near perfect law enforcement, that will put into sharp relief how ill-conceived or poorly written some of our laws are, but that's another issue.)

Re: Without the state having a monopoly on force ...

Am I a gun rights advocate?

I think civilian access to arms in the United States (including guns) should be no more restricted than it is to state agencies, such as law enforcement and the military.
In your eyes, Lawrence D’Oliveiro that may make me a gun rights advocate

I'll leave it to you to work out how that can be compatible with understanding (and agreeing with) the concept of monopoly on force.

Re: I'll leave it to you to work out how that can be compatible with understanding (and agreeing with) the concept of monopoly on force.

>Do all people have God given inalienable rights? Or just US citizens?

Theoretically, the people of Lower-Slobbovia select a government to protect their own inalienable rights; the people of Upper Slobbovia select a possibly-quite-different government to protect THEIR inalienable rights; the governments of Upper and Lower S. then make treaties defining the rights that everyone considers inalienable; and exchange ambassadors.

Each country's ambassador is responsible for protecting the rights of his fellow-countrymen who are visiting/working in the other country.

Since these documents reside in Ireland, the Irish government is responsible for protecting the inalienable rights of its citizens. Hence their involvement in the case. (As to the other kind of abuse: if U.S. citizens hide documents in Ireland, they cannot expect the Irish government to defend them if the U.S. government won't.

The difference between this and the Google case was that Google professed that both they and their (American) clients were indifferent to the location of the documents sought, and the documents moved around "at random". But here, the people chose Ireland, and--as has been mentioned before, it's pretty certain they are NOT U.S. citizens: otherwise the U.S. government could have made good use of the fact in court.

And of course, when another country wants to do the same with whatever stored on USA servers, the govt and the DoJ will be falling over themselves to help, I don't think!! The USA has the opinion that it can have and do whatever it wants but when it is expected to give up what is wanted by somewhere else, the attitude totally changes!

Re: World Reaction

The world reaction is easy to predict if this goes through.

Senior Politsiya Officer : Mr. Rodenhoff, we are investigating several miscreants here, they have been communicating overseas with several untrustworthy types in the United States. We have therefore opened investigations into all these foreign crooks. We require you to hand over all the papers and e-mail in your servers owned by these contacts. This is in perfect accord with both Russian Law and United States Law.

Action item for the reader: Get a Proton Mail account

Why anyone would choose to use an US-based email provider at this point is beyond me I moved over to Proton Mail going on 2 years ago now and I certainly recommend it to everyone I talk to. No matter how the courts are ruling, both the government and US companies have shown again and again and again that they are willing to do anything and everything they can to get to your data if they want it.

Sad that I have to put my trust in an overseas service—and I admit even then there's always a change they could be compromised—but to me it feels like the path of most resistance for any agencies trying to get at my Amazon receipts and family reunion logistics.

Re: Action item for the reader: Get a Proton Mail account

This is probably good advice. Proton Mail isn't the only option for a non-US-based E-mail provider, either; I've been using Fastmail since mid-2009, and have had no reason to be dissatisfied with them. There are almost certainly other good choices out there.